A: In New York, child support is determined by statutory guidelines. Generally, the Court will calculate child support based on 17% of one's adjusted gross income for 1 child, 25% for 2 children, etc. However, the Court has the discretion to deviate from these guidelines, based on numerous factors. One primary factor is if the parents' combined income exceeds $163,000 (the cap as of March, 2022).
There are also some other factors the court considers: day care expenses, medical/dental insurance costs and educational expenses - if the custodial parent incurs these expenses and they are unreimbursed, the non-custodial parent may be obligated to pay a portion of these expenses in addition to payment of the "basic child support" as explained above.
Additionally, in 2010, New York law amended its child support guidelines to include an automatic modification of child support once every three years. This means that if your child support order is up for a review, you may simply file a petition at the 3-year mark & have the Court re-calculate support based on current incomes. Moreover, if you or your child's parent has undergone a substantial change in circumstances, warranting a modification, the court can also assess your situation to determine if a modification is necessary.There are several other factors which the Court considers, as detailed below:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes; (3) The standard of living the child would have enjoyed had the marriage or household not been dissolved; (4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child; (6) The educational needs of either parent; (7) A determination that the gross income of one parent is substantially less than the other parent's gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
1. "Marital Property"
New York Domestic Relations Law section 236 defines "marital property" as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held," except pursuant to the terms of a validly-drawn separation agreement, pre/post-nuptial agreement, or stipulation of settlement.
2. "Separate Property"
The same statute defines "separate property" to mean (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties (as described above).
The statutory factors are:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful
employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;
(n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(o) any other factor which the court shall expressly find to be just and proper.
1. Overall factors
The Judge will generally consider the stability of the child's current arrangement, each parent's home environment and financial ability to meet the child's needs, any arrangements to care for the child when the parent is unavailable, who has been the primary caretaker for the child in the years (or months) leading up to the custody filing, any drug/alcohol abuse by either parent, past criminal behavior of a parent, the mental & physical health of the parties, adverse sexual misconduct or other moral character flaws of either parent, domestic violence, as well as the child's preferences.
2. Other factors
The court will also assess each parent's willingness to foster a relationship between the other parent and the child (including issues of parental alienation and/or involving the child on parental conflict), any denial of access to the child, as well as any abuse or neglect of the child. The Court will also consider availability of either parent to care for the child, as well as false accusations made against the other party. Likewise, a party’s conduct during the pre-trial phase will be considered, such as conduct in court, illicit recordings or other unlawful conduct towards the other parent, lateness with pick-up/drop-offs or inflexible parenting approaches (e.g., one parent trying to be the dictator towards the other). Finally, the Judge will assess the parties conduct as the case is proceeding, including whether a party has misled the Court or violated any pre-trial orders.
3. Strategy considerations
First, no matter how tense the situation may be around the house, do NOT move out of the house & leave the kids with the other parent. This will automatically put you behind the 8-ball in winning custody.
Additionally, if you haven't been already, take an active part in EVERYTHING the children are involved in. Make sure his/her teachers, doctors, extracurricular activity instructors, etc. know you by your first name.
If you presently work long hours, cut it out immediately. Spend the extra time with your kids. Take them fun places & buy them nice gifts (though caution must used not to over-do it as it otherwise would look like you're trying the bribe them).
Keep a written diary of any important conversations or interactions with the other parent (a "he-said-she-said" log). Refrain from posting negative content about the other parent on social media as this is potentially discoverable - if you have something to say to a friend/family member, say it in person. Refrain from cursing or denigrating the other parent, especially in writing (I don't know how many cases I have in which one side curses or denigrates the other via text and/or e-mail).
Finally, consult a good Child Custody lawyer in your area.
A: In New York, custody can be determined in a number of ways:
- JOINT CUSTODY: In a joint custody situation, both parents have the legal authority to make major life decisions on behalf of their child concerning issues like religion, education or health care. Sometimes they agree to have "equal decision-making" which means they must reach agreement on all major decisions, or else the decision would be submitted to a mediator or Judge to decide. In other agreements, the primary custodial parent gets final decision-making after full consultation with the non-custodial parent. Joint Custody in New York is often reached via agreement but rarely imposed upon the parents by the Judge.
- SOLE CUSTODY: When a parent is given sole custody, the child will physically live with him or her, and he or she will have the ultimate authority to make everyday and major life decisions for the child.
- SHARED CUSTODY: When parents share custody, they generally split their access to the child 50/50. A shared custody situation is very rare.
- SPLIT CUSTODY: This is a situation in which at least 1 child lives with one parent, and at least 1 child lives with the other parent. Negotiating a custody plan can be complex. It is important to remember that the court ultimately looks at what is in the best interests of the child. For fathers, this means that if you and your child's mother separate, it is important to remain in the child's life as much as possible. Both parents -- custodial or noncustodial -- should keep as much physical evidence as possible that may strengthen their case.
A: NY has statutory factors that the Judge must consider in dividing marital assets, debts & property. New York is an "equitable property" state. This means that any property, asset and/or debt accrued during your marriage is considered marital property, and therefore subject to distribution between parties.
"Equitable", otherwise known as "fair", means that the court will use its discretion to determine how and to whom property will be distributed. Some examples of marital property are as follows: homes and other real estate properties, retirement plans (pension, 401(k), etc.), professional degrees and licenses, art, decor and other personal property, as well as cars, boats, RVs, etc. (this is a non-exhaustive list).
Additionally, the "appreciation" in value of some separate property may also be distributed to the non-title-holding spouse, if s/he can prove sufficient direct/indirect efforts which allowed the appreciation to occur. And because any distribution done by the Court must be "equitable," this means in some case it is 50% but in other cases the court could use a higher (60+%) or lower (0-40%) percentage.
Moreover, the Court may distribute some assets (like a house or bank account) 50%, and other assets (like the value of a degree) only 10-20% within the same case.
1. Statutory Factors
The statutory factors pursuant to Domestic Relations Law 236 are:
- the income and property of each party at the time of the marriage, and at the time of the commencement of the action;
- the duration of the marriage and the age and health of both parties;
- the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
- the loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
- the loss of health insurance benefits upon dissolution of the marriage;
- any award of maintenance under Domestic Relations Law, Section 236-B(6);
- any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- the liquid or non-liquid character of all marital property;
- the probable future financial circumstances of each party;
- the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
- the tax consequences to each party;
- the wasteful dissipation of assets by either spouse;
- any transfer or encumbrance made in contemplation of a matrimonial action without a fair consideration; and
- whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts; and
- in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
- any other factor which the court shall expressly find to be just and proper.
Other factorsUnder the "any other factors" application, a Judge may consider such things as financial assistance from the parents of one spouse which allowed for the accrual of assets and/or property, unpaid work one spouse performed in the other's business as well as the period of physical separation of the parties prior to the commencement of the divorce. One common factor usually NOT considered in the distribution of property/assets is marital fault.
- Parent’s reasons for seeking or opposing the move;
- The quality of the relationships between the child and the Custodial and noncustodial parents;
- The impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;
- The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move;
- The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements;
- ANY OTHER FACTORS/FACTS WHICH CLIENT THINKS IS RELEVANT FOR THE COURT EITHER GRANTING – OR DENYING – THE RELOCATION (INCLUDING THE ORIGINAL CUSTODY FACTORS, ESPECIALLY TO THE EXTENT THERE’S BEEN A SUBSTANTIAL CHANGE FROM THE ORIGINAL CUSTODY DETERMINATION).
1. Consider sellingWhile the real estate market is not great right now (2014) for sellers, if the mortgage is otherwise eating you alive, you may have no choice but to sell. Couples often budget a mortgage factored on two incomes coming into 1 household. When the couple goes through a divorce, now they are left with trying to support 2 households - meaning 2 sets of utility bills as well as both payment of the mortgage & payment of rent for one of the parties who's moved out. It's not uncommon for this to leave the parties at the break-even point, or even leave them with less money than is needed to pay all their basic expenses. If this is the case, then the best option is to immediately put the house on the market & salvage what you can of the equity.
2. Get a Co-SignorThe other option - if one party wishes to keep the house but the parties cannot afford to fund 2 households - is for the party wishing to keep the house to get a co-signor on the mortgage. That way, the party giving up his/her rights can get a buy-out from the refinance & go on with his/her life. Making these decisions sooner rather than later in the divorce process will save on attorney's fees as well as preserve equity you've worked so hard to build up in the house.
1. Is shared custody pursuant to an order - or just informal agreement?
The first analysis is whether the shared custody arrangement is pursuant to court order, or just by a mutual, informal agreement. If it's pursuant to court order, then you can skip to the 2d section below. If it's pursuant to informal agreement, then you're best advised to start keeping track of the days (& even hours of those days) the child is with you. Reason being: if there's a dispute later on about whether you do indeed shared custody, then at least you have something in writing to corroborate same. You should also begin confirming the days you'll have the child with the other parent in writing. As an example, you can send a calendar to the other parent for the next month marking off "M" or "F" on the days to designate which days the child will be with you versus the other parent. In the end, you're best advised to file a petition for shared custody & get the arrangement confirmed via court order.
2. Support based on who makes more - with some exceptions
The prevailing law - however incorrect - holds that in a shared custody situation the parent who makes more is automatically deemed the noncustodial parent & is thus potentially liable for the full guidelines amount (i.e., 17% for 1 child, 25% for 2, etc.). That said, many courts deviate from the presumptive calculation in a shared custody situation & do an off-set: first, then calculate support as if the father is paying the mother support. Then they calculate as if the mother pays the father support. The difference between the two calculations would therefore be the only money changing hands. Bear in mind, however, that merely because court may deviate in a shared custody situation, it certainly doesn’t mean the court is required to do so. Judges are free – after considering all the relevant factors, to award full guidelines child support, or no child support at all (and everything in between).
1. New York has "No-Fault" Divorce now
Prior to October, 2010, one generally needed to make an allegation of fault against his/her spouse in order to get divorced. One common way around that was to do a separation agreement. The law provided that if the parties remained separated pursuant to a Separation Agreement for more than 1 year, then either could file for an uncontested divorce based on the agreement. This indeed was one of the leading reasons why people prior to the law's amendment filed for separation as opposed to divorce. Now that New York passed "No-Fault" Divorce, however, there is no longer any reason to allege fault in order to get divorced - one only needs to state that the marriage has broken down "irretrievably" for more than 6 months.
2. Other reasons for getting a Separation versus a Divorce
Once the parties are divorced, then generally if one is covered by his/her spouse's medical insurance, their insurance will terminate. This is because very few plans cover "ex-spouses." As such, a leading reason why some people still choose to get a legal separation first is to preserve continuity of insurance coverage for at least another year. With the Separation Agreement, the parties can resolve every other issue which would otherwise be brought up in the divorce. The agreement would cut-off accrual of marital assets & debts, and can equitably divide them. The agreement can also provide for custody, visitation, maintenance (i.e., alimony) & child support. The only thing the agreement cannot do is actually terminate the marriage. That takes a divorce proceeding - which either party can file for upon the expiration of 1 year (or later) from the date the agreement is signed.
1. Try informal methods first - then a P.I.
Ultimately the spouse needs to be served with the divorce papers. Thus, one can check informal methods to locate one's spouse, such as friends, family members or associates of your spouse. One can also do informal internet searches - if one can get a good address that way, one can send a process server to that address in an attempt to serve him/her. If a good address cannot be ascertained, one will ultimately need to hire a private investigator.
2. P.I. first - then motion for publication notice
The P.I. must conduct a formal "diligent search" - the search does not ultimately need to actually locate the spouse, but the P.I. must document to the Court that s/he has looked for the spouse in a variety of ways, such as credit reports, public records, etc. If the spouse still cannot be located, then one will need to take the diligent search report & file a motion with the court asking for "publication notice," which basically means running a copy of the summons in a newspaper designated by the Court. If the Court approves the motion, then one may proceed to run the summons in the newspaper - same will then be considered "valid service" and one may thereafter proceed with the divorce on default.
1. These services generally aren't worth their money - and can end up costing you more!
I just saw one such Ad claiming to "do all the paperwork for $299." Let's call them "Joe's Professional Services." Here's the problem I've found: they are basically a typing service, and cannot give people legal advice. Thus, when people walk into their office & put down $299, they give them the same forms people can obtain for free off the internet (as if they've done something at this point for the money), tell the people to "fill them out as best they can on their own," give them a pen while they sit in their waiting area doing their work for them, and when the people are done, they spent 5-10 minutes typing the forms for them. When they're done, they hand the forms back to the people & tell them, "Ok, good luck, go file these forms with the Court & wait 6 months. Have a good day!" And if the Court rejects the forms because there are errors on them, they either refuse to correct the mistakes - or tell the people that to correct them will cost another $299 (or $399). What a rip-off!
2. They're usually not even paralegals, despite implying otherwise
I had a "paralegal" come into my office to apply for a job who claimed at her experience having worked at one of these "Document Service Companies." She listed on her resume that she was a paralegal. I asked, "Ok, where did you earn your Paralegal Studies Degree or obtain your Certification?" She replied, "Oh, I'm not really a paralegal, I just call myself that." Unbelievable! Yet unsuspecting clients of these companies don't know better than to ask, especially when they imply in their name that they are "Professionals." I'll give you an example of why you're paying more with these services: in the Bronx, I currently charge $250 to review paperwork for potential clients. I'll also provide the forms for the people (since they're free anyway). If they wish to fill out the paperwork on their own, I can then review it with them & suggest corrections for less money than the Document Service Companies charge to type the forms. Then if the person needs the forms typed, they can simply take the forms to an Office Store (like FedEx Office) & have them type the forms, probably for $50 or less. Thus, the person has paid as much or less to have the forms typed and reviewed by an Attorney than they would spend to have the forms done by a Document Service Company - and with much less potential for mistakes. There's an old adage I'm fond of: "The Poor Pay More for Less!" This is likely true if one goes to a Document Service Company for one's Uncontested Divorce.
1. General rule - and some exceptions
NY now has maintenance guidelines which result in the "presumptive" amount of maintenance - at least for temporary orders. A calculator & the factors considered may be found here: http://www.courts.state.ny.us/. If you face the prospect of paying maintenance, one thing you should do is document to your spouse that you want him/her to find employment - or if they are working, to find a better job or go back to school. You should do everything in your power to encourage his/her job efforts. Send him/her job listings, for instance. If s/he isn't working due to childcare, offer to have the child(ren) stay with a relative or find daycare. Does your spouse have employable skills or work history & is simply squandering them? Consider hiring a headhunter or employability expert to assist in the process.
2. Go thru the factors with your attorney & see if there are exception or off-sets which apply
There are numerous factors considered in arriving at the "proper" amount of maintenance. Was this a short-term marriage (less than 10 years)? Do you have alot of marital debt (indicative of living above your means during the marriage)? Does your spouse have a college or graduate degree which may create high earning potential? Was the degree earned during the marriage? Is your spouse likely to get a relatively high distribution of assets from the marriage? Does your spouse own any separate property (or have any separate assets)? Are you covering your spouse on your health insurance (and is there an additional amount you pay to cover him/her)? All of these are common factors considered in reducing or eliminating the potential for the Court to award maintenance. Discuss them all with your lawyer.
1. Prior Support paid pursuant to order/agreement
If the support you are paying is pursuant to a prior order or prior valid, written agreement (usually a "stipulation of settlement" or "separation agreement"), then you can bring that prior order or agreement with you to court. So long as you also bring proof you are actually paying support pursuant to that prior order or agreement, you should get a credit. The credit works by subtracting the prior support amount off one's adjusted gross income before calculating support for the subsequent child.
2. If you don't have a prior order/agreement
If you do not have a prior order or valid, written agreement, then try to get one in place before the mother of the subsequent child files for child support. If you do an agreement, make sure to have it drafted by an experienced Child Support lawyer, as not "any old agreement" will do. If the subsequent mother has already filed, then the only way you can get credit is to claim (if it's the case) that after subtracting the support order for the subsequent child, the prior child will not be left with enough money to minimally support that child.
1. Consider filing a Spousal/Child Support action in Family Court
While often times if people are getting a divorce anyway, the knee-jerk reaction is to file for divorce. If there are emergency issues, however, such as how is the rent/mortgage going to be paid next month, then filing a motion in Supreme Court may not be the way to go. This is because Supreme Court is often slow in deciding such issues. Even on an emergency motion the court gets up to 60 days to decide the motion - and that's from when all papers have been submitted by both sides (which especially in NYC & surrounding counties can take 1-2+ months in itself). In other words, if you need a quick order, filing a motion in Supreme Court may cost you 4-5+ months just to get a decision - and even that's on an emergency motion.
2. You may proceed simultaneously in Family Court as well as Supreme Court in many instances
Generally the courts do not want the same issue pending in 2 courts at the same time. In other words, Judges would otherwise frown on the same party filing for divorce in Supreme Court & including a maintenance (i.e. alimony) claim in addition to filing a spousal support case in Family Court. However, one major exception is where the party requesting support is "in danger of becoming a public charge" - in other words, without the Court ordering the other side to pay support, the "needy" spouse would otherwise need to apply for some form of public assistance (food stamps, rent assistance, etc.). In Family Court, one can get an initial court date within 4-6 weeks of filing one's support petition - and therefore usually get some form of support order entered in far less time than it would generally take for Supreme Court to decide the support issue. As such, if emergency support is needed, the requesting party should strongly consider proceeding in Family Court first (of course after consultation with an experienced Family Law attorney)!
1. 60 days - or be prepared to prove fraud (or some other ground)
Generally, when a new father signs the acknowledgement of paternity, he generally has up to 60 days to move to revoke the acknowledgement by asking for a DNA test. If he does not, then he must generally prove "fraud, duress, or material mistake of fact." This requirement is usually not satisfied by claiming "she told me the child is mine & now I have doubts."
2. If you have even a 1% doubt you are not the father, don't sign the acknowledgement
Many hospitals push both forms in front of the new parents & ask the father to sign both. Sometimes nurses mistakenly explain that the father must sign the acknowledgement of paternity in order to have his name placed on the birth certificate. This isn't true! The mother can put down anyone's name as the father on the child's birth certificate - placing the name on the birth certificate (in itself) does not establish paternity rights. Thus, if you have even a small doubt as to whether you are or are not the father, don't sign the acknowledgement of paternity. Just have the mother list your name on the birth certificate (if you both want it) & then go back to celebrating. You can always sign the acknowledgement of paternity at a later time.
1. File a Grandparent Visitation Petition
You can have your parents file a grandparent visitation petition with the Family Court. Generally Family Court will grant grandparents a visit either each month or every other month. If the custodial parent is denying grandparents access - and they live relatively far away from the non-custodial parent, then this may be considered as an option.
2. Document the Denial of Access
Have your parents attempt to resolve the access issue before filing with the petition. Have them write a letter or e-mail to the custodial parent and state how they have previously had a good relationship with their child (providing details of same) & that they wish to continue. Have them ask the custodial parent to provide any reasons why the access is being denied. Ultimately, the Court needs to rule that "equity sees fit to intervene," and that's why it's important to document the formerly good relationship and the lack of a good reason why access is now being denied.
1. Start saving now
I had a potential client walk into my office & say the Support Magistrate was about to assess him with a share of his son's college tuition - in addition to paying basic support. He said the tuition was $20,000 per year, and thus his share was $10,000. He said he didn't have $10,000 to give, in addition to paying the basic support. Having fully reviewed the facts with him, my basic conclusion was: he's screwed! He didn't save all along & could have reasonably anticipated his son would go to college. He otherwise had the financial means all along to put aside a small amount of money - which over the years would have built up enough to pay. He didn't do so, and thus is now being hit with the large bill.
2. Lesson: Start a 529 plan
As such, the lesson is to start a 529 plan today while the child is relatively young. You get a tax deduction for the amount you save - and thus won't have a large bill you can't afford to pay when they turn 18 and go off to college. NY Child Support law generally requires a parent to pay their share of college in addition to basic support so long as (a) the parent has the financial means to do so (or had such means & just foolishly failed to save), (b) attendance at college could be reasonably anticipated.
1. Set-up the default
Many settlement agreements have default notice provisions contained within them. In other words, if you wish to allege your ex-spouse violated the agreement, you must first send them an itemized notice of their violation(s). Most such default notice provisions require same to be sent via certified mail, return receipt requested, or via UPS/FEDEX. If you fail to do so, there's the possibility your violation application will be dismissed. Moreover, if you send the default notice, this sets up a counsel fee application even better, as then you can argue the other party had a chance to remedy the violation.
2. Be sure you're in "substantial compliance" yourself
Have the full agreement reviewed by your potential attorney, so s/he can go over with you whether you are in "substantial compliance" with each provision yourself. I have had many potential clients who wish to, for instance, sue for back child support, while they are violating one or more terms of the joint custody arrangement.
1. File for change of Custody as the situation arises
I had a potential client recently come into my office, who informed that the child wasn't happy living with her father, and often was passed off to the paternal grandmother to stay with. The situation had already persisted for a few months like that. I advised her to file for a change of custody right away. The longer the situation persists, the more the Judge will think the non-custodial parent was o.k. with the situation - or at least didn't feel it was enough to bring to the Judge's attention.
2. Move quickly - but not too quickly
That said, you should make sure before filing that the circumstances do indeed establish a likelihood the Judge will change custody. As such, sit down at a consultation appointment with an experienced child custody lawyer. I do not know how many people sit down with me at a consultation, tell me they've already filed for a change of custody - and then ask whether they have a basis to do so or not (usually phrased as: "do you think I have a good case?"). This discussion should occur before you file.
Overtime counts, too!Many non-custodial parents think that child support is just calculated on his/her base salary. Think again! All income counts, so this will include overtime or income from a 2d job. As such, if the custodial parent threatens to sue for child support, you may wish to consider cutting back on overtime, or giving up that 2d job - or else you may be stuck with having to keep earning that income whether you like it or not.
Other forms of income count too!Some people don't realize that if they have rental income, dividend income, or income from investments that it counts as income for child support purposes as well. Additionally, if you receive a tax refund, then guess what? That's income as well. The good rule of thumb to use is: any money coming into your wallet is probably going to be considered income for child support purposes. Be forewarned! Other types of income are: workers' compensation, disability benefits, unemployment insurance benefits, social security benefits, veterans benefits, pensions and retirement benefits, fellowships and stipends, annuity payments, and receipt of alimony or maintenance from a prior relationship.
The court may also “impute” income – or assume receipt of certain items may be included in the calculation of one’s Income. Examples from the statute are: non-income producing assets, meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits, fringe benefits provided as part of compensation for employment, and money, goods, or services provided by relatives and friends; an amount imputed as income based upon the parent's former resources or income (if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
Additionally, the Court may include the following “self-employment deductions” as imputed income: (A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and (B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures.
1. Be proactive & divide some assets before even retaining the lawyers
If you need money to pay for your attorney, pay large bills, etc., you're best advised to secure those funds before the divorce is even filed. Once the case is filed, as stated, you may be restrained from accessing certain funds without consent of your spouse. As such, if there's a house which needs to be sold, go ahead & sell it (with, of course, the consent of your spouse) before the case is even filed. If there is a dispute as to credits owed to 1 party, or debts which need to be paid, then evenly split the undisputed funds & place the remainder in the escrow account of 1 of the attorneys.
2. What about money to pay bills?
If you have a large amount of money in a bank account, or investment account, you can handle it the same way. Split the undisputed money evenly, and any remaining funds you can either leave it in the joint account, or deposit it in 1 of the attorneys' escrow accounts. I have handled far too many cases in which the parties do not do this, then file their divorce case - only to discover they cannot then access the joint funds to pay for their attorney or pay large bills. Better to act now than pay your attorneys to fight it out!
A: First let's define the terms. A general practitioner is an attorney who does several different area of law. For example, s/he does 20% Family Law, 30% property, 20% criminal, 25% civil litigation & 5% landlord/tenant. An attorney who concentrates in an area of law will do that area of law roughly 2/3 of the time (or more).
I'm a firm believer in the adage "a jack of all trades is a master of none." Another good analogy is in medicine - if you had a heart problem, would you want to see just a general practitioner or would you want to see a specialist? I'm guessing most people would want to see a specialist. Same thing in the law.
I'll give you an example from a recent potential client I serviced. She went first to a general practitioner, who told her she would not qualify for maintenance (i.e., alimony) if she was not a housewife. That statement is so far from the truth as to be outright deceiving. While certainly not all non-monied spouses will qualify for maintenance, New York has a maintenance calculator which gives one the presumptive amount one is entitled to: http://www.courts.state.ny.us/divorce/calculator.pdf.
Next, this same general practitioner advised the potential client to handle her child support & child custody issues in Family Court first before filing for divorce. The problem? The parties still reside together - if she had attempted to file either such petition in Family Court, the Judge most likely (certainly not definitely) would have dismissed the petitions given that they still live together.
In sum, as a general rule, it's better to go to a specialist - whether one is dealing with the medical field or the legal one.
A: There are many considerations to take into account when choosing a lawyer.
Price is certainly one consideration, but should only be one of many. For instance, if a lawyer is quoting you a very high fee, is s/he worth the extra amount as compared to another attorney who may have slightly less overall experience - but who's intellect and diligence level compares favorably to the more expensive attorney.
There are also attorneys out there who charge very low fees or charge clients a fixed fee only when they appear in court. A potential client should consider whether the attorney charging such fees is very inexperienced compared to other attorneys, or is "running a mill" - in other words, has a caseload so high (100+) that there's little chance s/he can devote quality time to your case. There have been studies done which say family law attorneys should not have more than about 70 cases at a time. Thus, ask your attorney how many cases the have - if s/he doesn't know or can't answer that question, good chance the caseload is so high s/he lost count.
Then there are attorneys who charge a fixed fee when they show up (say $500-750 per court date). Here's the problem: if a lawyer makes his/her money only by showing up to court, what's the incentive to actually prepare for court? Obviously preparation depends on the complexity of the case, but I often tell potential clients that for contested custody or divorce cases, I often spend at least 1 out-of-court hour for every in-court hour (sometimes far more than that). Thus, unless your case is extremely simply (and if its in-court already, then it probably isn't), then having a lawyer charge you a fixed-fee is probably doing little more than ensuring you have a warm body next to you in court.
Next consideration is experience. On the surface, one can say having a lawyer with 30 years’ experience is better than having a lawyer with 10 years experience. And while as a very general rule that's true (wisdom does count for something, after all), it is also good to get beneath the surface. For instance, if one lawyer has 30 years’ experience, but only devotes 40% or less of his/her practice to divorce/family law, and another lawyer has only 15 years experience but devotes 100% of his/her practice to divorce/family law, then one can make a good argument that the latter has more relevant experience than the former.
Furthermore, what is the experience? For instance, perhaps an attorney who has 25-30 years’ experience currently devotes the majority of his/her practice to divorce/family law - but has it always been that way? In other words, the attorney can say "2/3's of my cases are divorce/family law cases." But the attorney could have shifted his/her practice areas just in the last few years (for example, having done mostly property transactions or estate work up until recently).
Moreover, if your case involves contested custody issues, ask how many custody cases the attorney has actually handled. Many potential clients are not aware that some family law attorneys concentrate in doing mostly divorce cases (and thus very few family court cases), or most family court cases (thus doing very few divorce cases). It is often best to have an attorney who has experience, but more importantly relevant experience to your case.
Likewise, if your case looks like is may result in a trial, ask how much trial experience the attorney has. Some attorneys in the family law field concentrate on out-of-court settlements and thus shy away from heavy litigation. If one attorney was a former D.A. or prosecutor & thus handled numerous trials versus another who sat in a cubicle in the many years after law school watching the senior partner going off to court, then that's something you should know about.
One factor potential clients may wish to ask about is what law school the attorney attended as well as his/her graduation rank. For example, if an attorney graduated from a poorly-ranked law school (rankings can be verified on U.S. News & World Report - but be sure to look at where the school was ranked when the attorney actually attended the school) that may be one factor considered. Also, if an attorney graduated at the bottom of his/her class, again this is something to factor into the overall analysis.
One can ask: how on earth is law school stuff relevant anymore for an attorney who graduated 25+ years ago? The way I look at it, if s/he graduated towards the bottom of his/her class, this may be indicative of laziness or lack of (relative) intellect. While it's certainly possible things have improved with age, my gut says "old habits die hard" and such factors should be considered (even if they are given less weight than other factors).
Finally, how is the initial consultation dealt with. Does the attorney seem too busy to give your case adequate attention? Does the attorney seem friendly or unfriendly? Did the attorney just charge you for the pleasure of meeting with him/her for the first time (think about how many other businesses actually charge their customers before they provide any service). Establishing a good connection with your attorney is important as you must see this as forming a relationship, not just signing a contract.
While there are other factors which may be taken into consideration, asking the questions outlined herein will certainly get you off to a great start.
My sister in law recently broke up with the father of her child. This “man” is not only a drug dealer but a user as well. He has never had a real job or a place to live other than his parents house, but his parents got him a high priced lawyer to try to get full custody of their child. My sister in law on the other hand is a school teacher and a positive member of society. On her salary she is paying for a place to live, daycare and all other expenses that her child and her incur. On a teachers salary there isn’t enough left over to hire a good lawyer. She is working with financial aid to get a lawyer, but it is taking forever and I am afraid this lawyer will have to much on their plate to give my sister in law’s case the time it deserves. Would love any and all info you can give me. Thank you
A: There are extremely few attorneys willing to do “pro bono” work in the matrimonial field. Thus, her best bet is to shop around & ask lawyers if they do a “sliding scale” on their fees – some do, some don’t. Thus, she should call a Westchester Child Custody attorney to schedule a consult.
I am divorced from my wife. We have 2 kids, ages 7 and 8. Over my objection, she wants to relocate with them to Portland, OR. in “no way, shape or form”, is it in their “best interests”, to do so. The kids’ court-appointed attorney has already interviewed them about the move and they were unsure about it. The judge scheduled a trial, which will help he make a determination one way or another. Prior to the trial, this attorney wants to interview them YET AGAIN, and if the kids now want to go, he’ll approve the move! I don’t want him to interview the kids any more. I’ve never been abusive towards them, they love me very much, the mother has not fully cooperated with all the court orders involving visitation over the last 6 years. The 3,000 mile distance is insurmountable. For all intents and purposes, any orders, e.g., nightly telephone calls, religious upbringing, visitation set forth by a NY court will thereby by unenforceable. This attorney is just hoping to wear my kids down.
A: It is reasonable for an attorney representing children to interview them numerous times during the course of his/her representation. Of course, this depends on the length of time the case lasts, as well as the age of the child. As you presumably have an attorney representing you, if you’re looking for a 2d opinion, call a Westchester Child Custody attorney to schedule a consult.
Hi during my marriage I had an affair which lead to a baby.. I was aware who the dad was but was afraid to tell my husband now everything is out.. and all of us know who’s the real dad.. is it necessary for the courts to do a DNA.. we have proof ..evidence and we did our own DNA.. my husband is signing off his rights because he know he’s not the Dad.. and the biological dad wants he’s rights we have our next court day in 2 weeks.. I hope this is our last one we been going to court since march… ..
A: If the child was born during the marriage, then the court must hold a hearing to overcome the “presumption of legitimacy.” The Court may even need to assign an attorney to represent the child. Schedule a consult with a Bronx Adoptions attorney for a full assessment.
I have a daughter with my ex. She is currently 8 years old. I received a final order of custody in this year August. I have sole physical and legal custody and my ex gets every other weekend Saturday morning to Sunday evening. Plus holidays are split between us alternating years for day visits. In the order it also says that I cannot relocate outside of the greater New York city area. My husband is about to join the military and he is thinking of doing active duty marines. Which means that after he finishes basic training and tech school he will be stationed on a base out of state. If I want to move with him to live on base in another state, will I be able to bring my daughter with me and get my court order modify so that I can move out of state. The base could be located in either California, Georgia, South Carolina, Arizona or Virginia. How do court orders work when you are married to someone in the military but have a child with your ex? How does family court handle situations like this? I already know my ex will not agree to allow the move. I don’t want to stay behind from my husband for 4 years but I dont want to leave my daughter with my ex since he cannot support her.
A: You cannot automatically move, merely because you have sole custody. You’d need either the Father’s express permission, or you’d need to file a custody relocation case in Family Court. Schedule a consult with a Bronx Child Custody attorney for a full assessment.
Going through a divorce in NYS, talking with my friend of 15 years about my Ex (no threats or specifics about the divorce) just about my feelings regarding him and his mistress. My friends husband works for my Ex, as does my Ex’s mistress. Can my friend record our talks without my consent and then give them to my Ex to use against me in court? My friend knew about the mistress from other sources. Our case is only financial there are no children and I filed on irreconcilable differences not infidelity.
A: Yes – it is only illegal wiretapping in NY if one is recording a conversation one is not a party to. How useful it would really be if finances are the only issue is debatable. Schedule a consult with a White Plains Divorce attorney for more info.
I need it in paper work.
A: You may file a custody petition in the Family Court. Be sure to have a good address where you can serve the other parent. Call a Bronx Family Law attorney for more info.
I’m disabled and I only get $525 from SSD child support is taking $277 of that I can’t even pay my rent I don’t get food stamps so how am I supposed to eat please help me I no longer live in New Jersey I live in New York now don’t have enough money to travel back to New Jersey to go to court don’t know what to do please help.
A: So are you discussing a NY order, or a NJ order? Assuming it’s a NY order, you’d need to file a modification petition & a Petition to Adjust Arrears. For the Court to limit arrears to $500 in any given year, you’d need to be able to prove to the satisfaction of the Court that your income was below the poverty line, and it was thru no fault of yours. Call a Bronx Child Support attorney for more info.
I’m paying my back support but I can’t get a metro to work and rent and food off 13.00 after they take out . What can I do?
A: If there is a money judgment in place for child support arrears, then generally SCU (or the support recipient via counsel) may execute a seizure of assets in a bank account. There are certain exceptions to this, however, so you may wish to have the matter review by an attorney. Call a Bronx Child Support attorney to schedule a consult.
Custody/visitation – Filed motion significant change in circumstances Father recovering heroin addict. Three and half years sober – employed with same company for 3 years. Modification originally heard 3/ 2015 over two years ago. Both parties represented by attorneys. attorney fo child interviewed son at age 7 – said he wanted to see father. Father sending monthly gifts to son. No acknowledgement from mother. Paid out $ 19000 to attorney. Pages and pages of treatment records – opposing attorney not satisfied with records. Both parties now pro se. Second attorney for child spoke with child at age 9 does not want to see father and wants step father’s last name. Judge asked father how he wants to proceed. Taken by surprise. Attorney for child will continue to obtain more records. Can judge order no contact with father? forced to give up son for adoption? Attorney and judge treat father as if he is an active addict . Father feels discriminated against. Treatment records release given to attorney for child. mother wants records thinks dad is hiding something. Father had been on methadone tapered off 2 years ago and completed level one outpatient counseling program.
A: First, you should have an attorney representing you – if you cannot afford an attorney, ask the Judge to assign you one. Second, while a Judge cannot terminate your parental rights or “force an adoption” under such circumstances, a Judge does have the discretion to enter an order of no visits or an order of therapeutic supervised visits. Schedule a consultation with a Westchester Child Custody attorney for a full assessment.